Oops. Former bar prez copies top court on email about its 'ill-conceived and uninformed questions'

A well-known lawyer congratulating two attorneys about their recent oral argument before the Nebraska Supreme Court in a state bar association case apparently was not as impressed by some of the jurists on the bench.

Former state bar president Warren Whitted Jr. referenced “some ill-conceived and uninformed questions” posed during the Sept. 30 oral argument. But the criticism went farther than he intended when he accidentally copied the email to Chief Justice Michael Heavican and a state court of appeals judge among almost two dozen other recipients, according to the Lincoln Journal Star.

“You did a great job and dealt with some ill-conceived and uninformed questions very well,” he wrote to the bar association’s lawyers, Omaha practitioner Michael Kinney and constitutional law professor Michael Fenner of Creighton University, who is also the group’s president-elect. “It’s now in the hands of the court and we have done all we can.”

Within hours, Whitted sent a second email directly to Heavican apologizing for any offense the first email had caused. “The comments were not directed at you, and I intended no disrespect to the court,” he said.

State Sen. Scott Lautenbaugh of Omaha is the plaintiff in the case. He is seeking to overturn a rule making membership in the state bar mandatory, arguing that the bar is involved in political activities, according to the Omaha World-Herald.

Whitted sent his initial congratulatory email to members of the bar association’s executive council, but inadvertently included Heavican, who is its nonvoting supreme court liaison.

The two emails came to light when the chief justice filed a disclosure about the communications last week. It attached both emails, assured those involved in the case that they won’t affect his deliberations and asked that any objections to his continued involvement in the case be made known.

Kinney and Fenner said in a responsive filing that they and the bar association don’t share the views expressed in the email, which they described as an “individual’s personal feelings,” the World-Herald recounts. They also said it isn’t necessary for Heavican to step aside from hearing the case.

Lautenbaugh declined to comment, and Whitted did not immediately respond to a request for comment Tuesday from the World-Herald.